Jharkhand High Court
Ajay Paswan vs State Of Jharkhand & Ors on 20 February, 2009
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
W.P.(Cr.) No.274 of 2008
Ajay Paswan -- -- -- -- -- -- -- --Petitioner
Versus
1. The State of Jharkhand
2. Superintendent of Police, Bokaro
3. Deputy Inspector General of Police, Whole Range, Bokaro.
4. Officer Incharge, Jaridih Police Station, Bokaro -- -- Respondents
CORAM : THE HON'BLE MR. JUSTICE D.K. SINHA
For the Petitioner : M/s. P.P.N. Roy, Sr. Advocate,
Sanjay Kumar, Rajiv Lochan, Advocates
For the State : M/s. Rishi Pallava, R.P. Singh, J.C. to G.P.-II
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Reserved on: 19-01-2009 Pronounced on: 20- 02-2009
D.K. Sinha, J. Petitioner has invoked the extra-ordinary writ
jurisdiction of this Court under Article 226 of the Constitution of
India for quashment of the second F.I.R. vide Jaridih P.S. Case
No.90 of 2008 dated 13.9.2008 registered for the alleged offence
under Section 306 of the Indian Penal Code being not maintainable
for the reasons that an U.D. Case No.10 of 2008 was registered
earlier for the same occurrence at the Jaridih Police Station on
30.6.2008.
2. The Investigating Officer after investigation in the case of unnatural death submitted final form under Section 173 of the Code of Criminal Procedure.
3. The occurrence as presented by the prosecution took place at different stages. The sequence of the occurrence is that the wife of the informant Saroj Kumar Jaiswal namely Lakshmi Jaiswal was kidnapped by the petitioner on 31.5.2008 as alleged by the informant giving rise to Chas P.S. Case No.131 of 2008 registered on 24.6.2008. Lakshmi Jaiswal was recovered by the Chas police but thereafter she opted to live with her parents at Jainamore. The police after investigation of the said case submitted final form under Section 173 of the Code of Criminal Procedure observing that the allegation as levelled by the informant against the petitioner accused Ajay Paswan was not found true.
4. In the next sequence the informant alleged in respect of Unnatural Death Case No.10 of 2008 registered at Jaridih Police Station that his wife Lakshmi Jaiswal committed suicide on 30.6.2008 out of agony and pain on account of her alleged 2 kidnapping. Yet, the informant did not disclose or pointed out finger against any person or the petitioner as an abettor of such suicide. The Jaridih Police after investigation of U.D. Case No.10 of 2008 submitted final form on 13.9.2008 before the S.D.J.M., Bermo at Tenughat but simultaneously the Jaridih Police sought for and the Court of S.D.J.M. without recording reasons in the ordersheet dated 13.9.2008 accorded permission to the Police for further investigation of the U.D. Case No.10 of 2008.
5. Nevertheless, in the meantime, the informant Saroj Kumar Jaiswal lodged an another F.I.R. giving rise to Jaridih P.S. Case No.90 of 2008 against the petitioner Ajay Paswan for the alleged offence under Section 306 of the Indian Penal Code by way of presenting a written report on 13.9.2008 in respect of suicide committed by his wife Lakshmi Jaiswal and the petitioner as abettor though he had given the petitioner a clean chit earlier in the written report on the basis of which U.D. Case No.10 of 2008 was registered and the S.D.J.M., Bermo at Tenughat had already accorded permission after applying his judicial mind for further investigation of U.D. Case aforesaid.
6. The learned Sr. Counsel Mr. Roy emphatically submitted that the petitioner carries no grievance at all if the U.D. Case No.10 of 2008 is permitted for further investigation under Section 173(8) of the Code of Criminal Procedure at the behest of the Investigating Officer but the petitioner is highly prejudiced for the institution of fresh case for the same offence by the same informant giving rise to Jaridih P.S. Case No.90 of 2008 which is barred under law as a person cannot be vexed twice for the same allegation. The statement of the informant if made subsequently before the police either orally or in writing for the same alleged occurrence may be treated as his statement falling under Sections 161/162 of the Code of Criminal Procedure.
7. Mr. Roy, the learned Sr. Counsel relied upon a decision reported in (2001) 6 Supreme Court Cases 181 wherein the Apex Court in T.T. Antony versus State of Kerala and others observed:
"An information given under sub-section (1) of Section 154 CrPC is commonly known as the first information report (FIR) though this terms is not used in the Code. It is a very important document. And as its nickname suggests it is the earliest and the first information of a cognizable offence recorded by an officer in 3 charge of a police station. It sets the criminal law in motion and marks the commencement of the investigation which ends up with the formation of opinion under Section 169 or 170 CrPC, as the case may be, and forwarding of a police report under Section 173 CrPC. It is quite possible and it happens not infrequently that more than one piece of information is given to a police officer in charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in Section 154 CrPC. Apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the first information report--FIR postulated by Section 154 CrPC. All other informations made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 CrPC. No such information/statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of CrPC.
The scheme of CrPC is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 CrPC on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of the evidence collected, he has to form an opinion under Section 169 or 170 CrPC, as the case may be, and forward his report to the Magistrate concerned under Section 173(2) CrPC. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR; he is empowered to make further investigation, normally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of Section 173 CrPC. "
It was further observed:
"A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. The sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Section 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. A case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offences 4 alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or Articles 226/227 of the Constitution."
8. Learned J.C. to G.P.-II fairly conceded that the investigation of Jaridih U.D. Case No.10 of 2008 was permitted by the S.D.J.M., Bermo at Tenughat to be reopened though prayer was made under Section 173(8) of the Code of Criminal Procedure for further investigation. However, it is stated in the counter-affidavit filed on behalf of the State that Chas P.S. Case No.131 of 2008 is reopened with the permission of the Chief Judicial Magistrate, Bokaro in which final form was submitted exonerating the criminal liability of the petitioner. In so far as the Jaridih U.D. Case No.10 of 2008 is concerned, the learned J.C. submitted that further investigation was going on. Even in respect of Jaridih P.S. Case No.90 of 2008, materials have been collected against the petitioner that he abetted the deceased in various manner impliedly, sufficient to file chargesheet.
9. Having regard to the facts and circumstances of the case and arguments advanced on behalf of the parties, I find that the moot question that has arisen in the instant case is as to whether the second F.I.R. is maintainable for the same and similar occurrence in which U.D. Case was instituted by the informant. The Respondent-State is silent on this issue. On the other hand, learned Sr. Counsel Mr. Roy by citing decision of the Apex Court, referred hereinabove, has emphatically submitted that subsequent statement of the informant for the same and similar cause/occurrence shall be treated as his statement falling under Sections 161/162 of the Code of Criminal Procedure and not being fresh materials for institution of another F.I.R. Upon conscious consideration of Annexure-2 and its careful perusal, I find that the Officer Incharge of Jaridih Police Station had made prayer before the S.D.J.M., Bermo at Tenughat for further investigation of U.D. Case No.10 of 2008 instituted on 30.6.2008 and not for reopening of investigation in which final form was earlier submitted.
10. On careful examination of the materials on record I find that the permission accorded by the S.D.J.M., Bermo at Tenughat was for further investigation as sought for which was 5 erroneously recorded in the ordersheet dated 13.9.2008 as 'reopening' of the investigation. In view of the specific proposition of law as laid down by the Apex Court referred hereinabove, I have no hesitation in observing under the facts and circumstances of the case in hand that the second F.I.R., giving rise to Jaridih P.S. Case No.90 of 2008, was unsustainable. Investigating agency has ample scope to further investigate the case under Section 173(8) of the Code of Criminal Procedure in spite of final form submitted under Section 173(2) of the Code of Criminal Procedure. It cam safely be observed that the permission accorded by the learned S.D.J.M., Bermo at Tenughat in U.D. Case No.10 of 2008 to the Investigating Officer for further investigation under Section 173(8) of the Code of Criminal Procedure fully covers the subject matter/allegation levelled in Jaridih P.S. Case No.90 of 2008 and that Saroj Kumar Jaiswal was the common informant in both the cases and therefore, subsequent F.I.R. vide Jaridih P.S. Case No.90 of 2008 is not maintainable having no force of law, accordingly, it is set aside.
11. This writ petition is allowed.
(D.K. Sinha, J.) S.B./A.F.R.